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Kitsap County Hearing Examiner ADMINISTRATION BUILDING, 619 DIVISION ST, MS-36 PORT ORCHARD, WA 98366 http://www.kitsapgov.com/dcd/lu_env/he/ (360) 337-5777

NOTICE OF HEARING EXAMINER DECISION March 24, 2016

To: Interested Parties and Parties of Record RE: Project Name: Sprague & McNeil Shared Pier, Ramp, Float and Tram Access Applicant: Scott Sprague & Jeanne McNeil

8295 Fletcher Bay Rd Bainbridge Island, WA 98110

Application: Shoreline Substantial Development Permit Permit Number: 15 002338

Enclosed is the Decision issued by the Kitsap County Hearing Examiner in the above-referenced matter. The applicant is encouraged to review the Kitsap County Office of Hearing Examiner Rules of Procedure found at: http://www.kitsapgov.com/dcd/lu_env/he/HE%20Rules%20for%20Kitsap%20County%20-%206-23-09.pdf The Decision of the Hearing Examiner is final, unless appealed, as provided under Washington law. Please note affected property owners may request a change in valuation for property tax purposes, notwithstanding any program of revaluation. Please contact the Assessor’s Office at 360-337-5777 to determine if a change in valuation is applicable due to the issued Decision. The complete case file is available for review at the Department of Community Development, Monday through Thursday, 8:00 AM to 4:00 PM and Friday 9:00 AM to 1:00 PM, except holidays. If you wish to view the case file or have other questions, please contact Constance Blackburn at cblackburn@co.kitsap.wa.us or (360) 337-5777. Cc Applicant and/or Rep: Scott Sprague and Jeanne McNeil: sbsnjem@gmail.com

Ross and Ingrid McNeil: 825 Peddie Street Houston, Texas 77008-4553 Cc Interested Parties: Janette Keiser: jan@keisergroup.com

Findings, Conclusions, and Decision Kitsap County Hearing Examiner

Sprague & McNeil Shared Tram, Pier, Ramp, & Float SSDP

No. 15 02338

Page 1 of 14

BEFORE THE HEARING EXAMINER

FOR KITSAP COUNTY

In the Matter of the Application of ) No. 15 02338

)

Scott Sprague ) Sprague & McNeil Shared Tram, Pier,

) Ramp, & Float

)

For Approval of a Shoreline Substantial ) FINDINGS, CONCLUSIONS,

Development Permit ) AND DECISION

SUMMARY OF DECISION

The request for a shoreline substantial development permit to construct a shared-use tram, pier,

ramp, and float at 15734 and 15748 Virginia Point Road NE in Poulsbo, Washington, is

APPROVED. Conditions are necessary to mitigate project impacts and to ensure the proposal

complies with federal, state, and local statutes, ordinances, and regulations.1

SUMMARY OF RECORD

Hearing Date:

The Hearing Examiner held an open record hearing on the request on March 10, 2016.

Testimony:

The following individuals presented testimony under oath at the open record hearing:

Steve Heacock, County Senior Environmental Planner

Scott Sprague, Applicant

Jeanne McNeil

Exhibits:

The following exhibits were admitted into the record:

1. Project Application–Land Use, Environmental, & Site Development, received June 17,

2015

2. Joint Aquatic Resources Permit Application (JARPA) Form, received June 17, 2015

3. Site Plan Overview, dated June 24, 2013

4. Dock Design Plans, dated June 7, 2015

5. Tram Design Plans, dated March 25, 2015

6. Site Photographs (3 Total), undated

7. Joint Use Agreement, dated September 3, 2013

1 The County has codified its Shoreline Master Program. Kitsap County Code (KCC) 22.100.110.

Accordingly, conditions requiring compliance with local ordinances would ensure the project conforms to

the County SMP.

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No. 15 02338

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8. Army Corps of Engineers Letter of Permission, dated February 12, 2015

9. Geological Assessment Report, EnviroSound Consulting, Inc., dated May 4, 2015

10. Biological Evaluation, Marine Surveys & Assessments, dated November 29, 2013

11. Environmental Checklist, dated June 7, 2015

12. Site Plans (4 Sheets), dated March 15, 2013

13. Notice of Application, dated August 10, 2015

14. Mitigated Determination of Nonsignificance, dated September 29, 2015

15. Notice of Public Hearing, dated January 28, 2016

16. Staff Report, dated February 3, 2016

17. Certification of Public Notice, dated February 3, 2016

18. Notice of Postponed/Rescheduled Hearing, dated February 10, 2016

The Hearing Examiner enters the following findings and conclusions based upon the testimony

and exhibits admitted at the open record hearing:

FINDINGS

Application and Notice

1. Scott Sprague (Applicant) requests a shoreline substantial development permit (SSDP) to

build a joint-use beach access tram, pier, ramp, and float (PRF) at 15734 and 15748

Virginia Point Road NE in Poulsbo, Washington.2 The proposed aluminum pier would

be 8 feet wide and 84 feet long, the proposed aluminum ramp would be 4 feet wide and

41 feet long, and the proposed float would be 8 feet wide and 60 feet long. The

Applicant proposes installation of a tram to provide access to the PRF. The tram would

be cable supported, which would eliminate the need for construction on the slope, and

anchored 16 feet back from the top of the slope and at the toe of the slope. Exhibit 1;

Exhibit 2; Exhibit 11; Exhibit 14; Exhibit 16, Staff Report, page 1.

2. On June 17, 2015, Kitsap County (County) deemed the application complete. On August

5, 2015, the County published notice of the application in the Kitsap Sun. Five days later,

the County mailed notice of the application to the Applicant, property owners within 800

feet of the subject property, and various governmental and tribal entities. The County

received no comments about the proposed project. The County posted notice of the open

record hearing associated with the application, originally scheduled for February 11,

2016, at the property on January 27, 2016. The next day, the County published notice of

the open record hearing in the Kitsap Sun and mailed notice to the Applicant and property

owners within 800 feet. On February 10, 2016, the County postponed the open record

hearing until March 10, 2016. That same day, the County mailed notice of the

postponement to property owners within 800 feet. County Senior Environmental Planner

2 The Tax Assessor Numbers associated with the properties are 352601-1-077-2000 and 352601-1-078-

2009. A legal description of the project site is included with the Joint Aquatic Resources Permit

Application. Exhibit 1; Exhibit 2.

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Sprague & McNeil Shared Tram, Pier, Ramp, & Float SSDP

No. 15 02338

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Steve Heacock testified that notice of the postponement was also transmitted to all

relevant governmental entities. Exhibit 16, Staff Report, page 5; Exhibit 17; Exhibit 18;

Testimony of Mr. Heacock.

State Environmental Policy Act

3. The County acted as lead agency and analyzed the environmental impacts of the project,

as required by the State Environmental Policy Act (SEPA), Chapter 43.21C Revised

Code of Washington (RCW). The County used the optional Determination of

Nonsignificance (DNS) process under Washington Administrative Code (WAC) 197-11-

355, and the SEPA comment period occurred concurrently with the Notice of

Application. The County published notice of the SEPA comment period in the Kitsap

Sun on August 5, 2015, and mailed notice of the SEPA comment period to the Applicant,

property owners within 800 feet, and certain governmental and tribal entities five days

later. The County received no comments on the proposed project. The County analyzed

the Applicant’s SEPA Checklist and other available information and issued a Mitigated

Determination of Nonsignificance (MDNS) on September 29, 2015. The MDNS

conditions require the Applicant to obtain a Hydraulic Project Approval (HPA) permit

from the Washington Department of Fish and Wildlife (WDFW) and a building permit

from the County before beginning construction. The MDNS also requires the Applicant

to perform mitigation for the project. This mitigation includes removing an existing pier

and float, with the accompanying creosote pilings, and removing invasive species from

the shoreline of the two properties. The MDNS was not appealed. Exhibit 14; Exhibit

16, Staff Report, page 3.

Comprehensive Plan, Zoning and Surrounding Property

4. The property is designated Rural Protection in the County Comprehensive Plan. The

County adopted the Rural Protection designation to promote low-density development

that is consistent with rural character and that protects environmental features such as

significant visual, historical, or natural features, wildlife corridors, steeps slopes,

wetlands, streams, and adjacent critical areas. Kitsap County Comprehensive Plan

(December 2012), page 3-39. Exhibit 11; Exhibit 16, Staff Report, page 13.

5. County staff identified as relevant to the proposed project Comprehensive Plan policies

that encourage developers to enhance or restore wildlife habitat by transplanting or

planting native vegetation in the developed landscape; limit development only to that

which serves rural residential or resource needs in rural lands; require that land-use

activities within or adjacent to resource lands are sited and designed to minimize conflicts

with, and impacts on, resources lands; encourage the use of best management practices

for all resource activities; preserve and restore shoreline characteristics; encourage and

support shoreline diversity through planned and coordinated development that gives

preference to water-dependent uses, traditional and historic use patterns, resource values,

and environmental protection; and safeguard shoreline resources by only allowing

Findings, Conclusions, and Decision Kitsap County Hearing Examiner

Sprague & McNeil Shared Tram, Pier, Ramp, & Float SSDP

No. 15 02338

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development that is compatible with sensitive shoreline areas.3 Exhibit 16, Staff Report,

pages 5 and 6.

6. Mr. Heacock testified that the property is zoned Rural Protection. The County adopted

the Rural Protection zone to implement the County Comprehensive Plan’s Rural

Protection designation. Kitsap County Comprehensive Plan (December 2012), page 3-

38; Kitsap County Code (KCC) 17.305.010. The County has zoned the surrounding

properties, which are developed with single-family residences, Rural Residential. Exhibit

11; Exhibit 16, Staff Report, page 3; Testimony of Mr. Heacock.

Existing Property

7. The project site consists of two 18,250 square foot parcels located on Liberty Bay. A

single-family residence sits on each parcel. Liberty Bay is an estuarine habitat into which

several creeks drain. A steep slope divides the upland properties from the shoreline.

Invasive ivy and blackberries currently grow on the slopes. A biological survey

performed by Marine Surveys & Assessments found no eelgrass colonies growing in the

project vicinity and determined that the bay was barren of life at the site. A 398 square

foot wood ramp and float, with three associated creosote pilings, sits on the shoreline of

the project site. Exhibit 1; Exhibit 2; Exhibit 3; Exhibit 5; Exhibit 10; Exhibit 11; Exhibit

12; Exhibit 16, Staff Report, pages 1 and 3 through 4.

Shoreline Management Act

8. The proposal is subject to the State Shoreline Management Act (SMA), Chapter 90.58

RCW, and the County’s Shoreline Master Program (SMP). The primary goal of the SMA

is to protect the public interest in the state’s shorelines through a coordinated

development process. The legislature enacted the SMA to protect against adverse effects

to public health, the land, vegetation, wildlife, and waters, and to preserve the public’s

opportunity to enjoy the physical and aesthetic qualities of the natural shoreline.

Permitted uses in the shorelines must be designed and conducted in a manner to minimize

damage to the ecology and environment of the shoreline area and to minimize any

interference with the public’s use of the water. RCW 90.58.020. Single-family

residences and appurtenant structures are priority structures under the SMA. RCW

90.58.020.

9. The purpose of the County SMP is to guide the future development of shorelines in

Kitsap County in a manner consistent with the SMA. KCC 22.100.110. Consistent with

the SMA, the County SMP requires the issuance of a shoreline substantial development

permit before any substantial development occurs on county shorelines. KCC

22.500.100.B. The SMA defines substantial development as any development for which

3 Staff specifically identified Comprehensive Plan policies NS-42, RL-4, RL-39, RL-42, SH-1, SH-2, and

SH-4 as relevant to the proposed project. Exhibit 16, Staff Report, pages 5 and 6.

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the total cost or fair market value exceeds $6,416, adjusted for inflation every five years,

or any development that materially interferes with the normal public use of the water or

shorelines of the state. RCW 90.58.030(3)(e). Regulations implementing the SMA

construe exemptions from the shoreline substantial development permit process narrowly.

Washington Administrative Code (WAC) 173-27-040(1)(a). If any part of a development

is not eligible for exemption from the shoreline substantial development permit process,

then an SSDP is required for the entire development project. WAC 173-27-040(1)(d).

The Applicant estimates that the fair market value of the project at approximately

$80,000. Exhibit 2.

10. The SMA designates certain shoreline areas as shoreline areas of statewide significance.

RCW 90.58.030. Such shorelines include those areas of the Puget Sound and adjacent

salt waters lying seaward from the line of extreme low tide. RCW 90.58.030(f)(iii). The

County must review all development proposals on a shoreline of statewide significance

for consistency with the purposes of the SMA and with policies that require it to

recognize and protect the statewide interest over local interest, preserve the natural

character of the shoreline, favor long-term over short-term benefit, protect the resources

and ecology of the shoreline, increase public access to publicly owned areas of the

shorelines, and increase recreational opportunities for the public on the shoreline. KCC

22.300.145.B. Exhibit 16, Staff Report, pages 9 through 13.

11. The County has included the portion of the property landward of the ordinary high water

mark (OHWM) in its Residential shoreline environment. The County adopted the

Residential shoreline environment to accommodate residential development and

appurtenant structures that are consistent with the County SMP and to provide

appropriate public access and recreational uses. KCC 22.200.115.A. Mooring structures,

such as the PRF proposed by the Applicant, KCC 22.150.430, are permitted in the

Residential shoreline environment with an SSDP. KCC 22.600.160.A.2. The County

SMP, at KCC 22.200.115.C, prescribes several relevant management policies for the

Residential shoreline environment that include:

setting standards for buffers, shoreline stabilization, vegetation conservation,

critical area protection, and water quality to ensure no net loss of shoreline

ecological function;

requiring multifamily and multi-lot residential and recreational developments to

provide, where possible, public access and joint use for community recreational

activities;

requiring adequate access, utilities, and public services to serve existing needs or

planned future development; and

limiting commercial development to water-oriented uses.

12. The County applies the Aquatic environmental designation to lands waterward of the

OHWM, including tidelands, bedlands, and lands beneath the freshwater shorelines of the

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Sprague & McNeil Shared Tram, Pier, Ramp, & Float SSDP

No. 15 02338

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state. KCC 22.200.135.B. The County adopted the Aquatic environment to protect,

restore, and manage the unique characteristics and resources of areas waterward of the

OHWM. KCC 22.200.135.A. The County SMP, under KCC 22.200.135.C, prescribes a

number of relevant management policies applicable in the Aquatic environment. These

include:

allowing new over-water structures and development on navigable waters and

their beds only for water-dependent uses, public access, and ecological

restoration, and only when (1) the structure or development does not preclude

ecological restoration; (2) the size of the structure or development is the minimum

necessary to support the use; (3) multiple use of the over-water facility has been

encouraged; (4) the Applicant has designed and located the structure to minimize

its impacts on navigation, fish migration, and existing water-dependent uses; and

(5) the use or modification is designed to prevent degradation of water quality and

alteration of natural hydrographic conditions. KCC 22.200.135.C.1.

preferring that new over-water structures proposed for residential development of

two or more dwellings be joint-use or community docks rather than single-use

facilities. KCC 22.200.135.C.2.

preferring development that be compatible with the adjoining upland

development. KCC 22.200.135.C.3.

preferring that applicants schedule a staff consultation to review the site

conditions and potential habitats and species. KCC 22.200.135.C.5.

limiting development in or over critical freshwater or saltwater habitats to

mitigate impacts according to mitigation sequencing and development standards

for that development activity. KCC 22.200.135.C.6.

13. The County SMP lists several standards for work waterward of the OHWM. The

standards exempt water-dependent, in-water structures from shoreline buffers; require an

applicant to obtain all necessary state and federal permits and approvals; require

compliance with timing restrictions set forth by state and federal project approvals;

require an applicant to limit disturbance of the bank and vegetation and to restore and

protect from erosion any disturbed area; and require an applicant to immediately notify

the appropriate agency if water quality problems develop as a result of in-water work.

KCC 22.400.105.B.

14. The County provided notice of the proposed project to relevant state, federal, and local

agencies, but none expressed concern about the proposal. Exhibit 16, Staff Report, page

8.

15. Mr. Sprague testified that the proposed PRF would use modern materials and would be

largely prefabricated. Mr. Sprague explained that the use of aluminum and fiberglass

materials would allow for a PRF design with a minimal number of support pilings and

also for significant light penetration through the entire PRF. These materials would also

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No. 15 02338

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allow for a design minimizing the footprint of the PRF. Minimizing the number of

pilings would reduce the noise impacts generated by project installation. Prefabrication

of the PRF would minimize in-water construction time and any associated increases in

turbidity from installation of the PRF. Mr. Sprague also testified that the Applicant

would install the PRF in accordance with work windows approved by the Army Corps of

Engineers. Those work windows are designed to minimize installation impacts on

aquatic species. Exhibit 8; Exhibit 14; Exhibit 16, Staff Report, pages 9, 12, and 13;

Testimony of Mr. Sprague.

16. Mr. Heacock testified that the County SMP, in effect since December 24, 2014, requires

applicants to seek necessary federal permits before applying for an SSDP for a dock

project and that the Applicant sought those permits. The National Marine Fisheries

Service and the United States Fish and Wildlife Service each reviewed the project and

both determined that the project would not likely adversely affect endangered species.4

The United States Army Corps of Engineers also reviewed the project for consistency

with the Endangered Species Act and the Magnuson-Stevens Fishery Conservation

Management Act and determined that it complied. The Corps of Engineers issued a letter

of permission for the project, dated February 12, 2015. Mr. Heacock also testified that

the Applicant had received hydraulic project approval for the PRF from WDFW. Exhibit

8; Testimony of Mr. Heacock.

17. The Applicant proposes mitigating any project impacts in two ways. First, the Applicant

would remove an existing PRF. Mr. Heacock testified that PRF was constructed using

creosote pilings and pressure treated wood. He explained that, because the existing PRF

was constructed with wood decking, it failed WDFW’s current light penetration

standards. Mr. Heacock further testified that the existing PRF had reached the end of its

useful lifespan, and Mr. Sprague confirmed that testimony by stating that the PRF had

begun to fall apart and that pieces of wood would eventually break off and drift into the

bay. Second, the Applicant would remove invasive species, specifically blackberry and

ivy, from the slope of the project site. Mr. Sprague’s wife, Jeanne McNeil, who would

oversee the removal of the invasive species, testified that she intended to retain

vegetation providing wildlife habitat, such as a plum tree, while removing the

blackberries and ivy. The Applicant would supplement the retained vegetation by

planting native species in accordance with a mitigation and planting plan submitted to the

County along with the building permit application for the project. Exhibit 14; Exhibit 16,

Staff Report, page 1; Testimony of Mr. Heacock; Testimony of Mr. Sprague; Testimony of

Ms. McNeil.

4 The National Marine Fisheries Service made its determination in NMFS Reference Number WCR-2014-

1334, dated October 20, 2014. The United States Fish and Wildlife Service made its determination in

USFWS Reference Number 01EWFW00-2014-I-6023, dated August 27, 2014. Exhibit 8.

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18. Mr. Heacock testified that the slopes at the site are quite steep. The Applicant currently

uses a stairway to access the existing PRF, but would use the tram after its completion.

EnviroSound Consulting, Inc., which prepared a geological assessment for the project,

determined that installation of the tram would not significantly impact slope stability.

Although not cited by the Applicant as a mitigation measure, Mr. Heacock opined that

the proposed tram would greatly reduce the impacts of transit up and down the slopes.

Exhibit 2; Exhibit 9; Exhibit 16, Staff Report, page 1; Testimony of Mr. Heacock.

19. Mr. Sprague explained that the proposed PRF would be built on the property line

dividing the two parcels comprising the project site. He and his wife own one of the

parcels, his wife’s brother’s family owns the other. The two families executed a joint-use

agreement governing construction of, and access to, the PRF. Exhibit 7; Testimony of

Mr. Sprague.

20. Mr. Sprague testified that the current PRF was insufficient to allow moorage of the

Applicant’s sailboat. County staff determined that the proposed PRF was the minimum

necessary to support its intended use, moorage for the Applicant’s sailboat. Exhibit 16,

Staff Report, page 12; Testimony of Mr. Sprague.

21. The height of the PRF allows for public use of the beach below it. The design and

placement of the PRF allows for public use of Liberty Bay. Exhibit 16, Staff Report,

pages 11 and 12.

22. Mr. Heacock testified that the Applicant sought an intake meeting with County staff

members. During that meeting, staff advised the Applicant on how to proceed with the

project. Exhibit 16, Staff Report, page 13; Testimony of Mr. Heacock.

Staff Recommendation

23. County staff recommends approval of the SSDP application, with 22 conditions. These

conditions generally require the Applicant to comply with relevant ordinances, statutes,

and regulations; limit disturbance of the bank and bank vegetation; restore disturbed areas

to minimize erosion; commence PRF construction within 2 years of SSDP approval and

finish within 5 years; comply with the setback provisions of the KCC when installing the

tram; comply with approved work windows; report any sighting of forage fish spawning;

contain and remove any debris generated by installation; minimize visual impacts of the

proposed project and its installation; apply best management practices to construction of

the PRF; and remove the 4,600 square feet of invasive species required as a mitigation

measure by the MDNS before obtaining an occupancy permit. Mr. Sprague testified that

the Applicant had no objections to the conditions proposed by the County. Exhibit 16,

Staff Report, pages 16 through 18; Testimony of Mr. Sprague.

Findings, Conclusions, and Decision Kitsap County Hearing Examiner

Sprague & McNeil Shared Tram, Pier, Ramp, & Float SSDP

No. 15 02338

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CONCLUSIONS

Jurisdiction

The Hearing Examiner has jurisdiction to hear and decide shoreline substantial development

permit applications as a Type III permit decision. KCC 21.04.050.A.3; KCC 21.04.100; KCC

22.500.100.B.2; KCC 22.500.105.

Criteria for Review

Shoreline Substantial Development Permit

The SMA provides that no substantial development shall be undertaken on the shoreline of the

state without first obtaining an SSDP. Regardless of whether a development constitutes a

substantial development, a development must comply with the requirements contained in the

SMA and the County SMP, and other permits or approvals under the SMP may be required.

Permits may be issued with conditions or limitations that ensure consistency with the SMA and

the SMP. KCC 22.500.100.B.4.

The Applicant has the burden of proof to establish that the development is consistent with the

SMA, the SMP, and any other applicable County policies and regulations. Upon consideration

of the evidence offered at the public hearing, the Hearing Examiner will issue a decision

containing findings of fact and conclusions describing the manner in which the decision is

consistent with the SMA and the SMP. KCC 22.500.105.E.1.

Shoreline Management Act, Chapter 90.58 RCW

The SMA is codified at RCW 90.58.020. Applicable policies of RCW 90.58.020 include those

to foster “all reasonable and appropriate uses”; protect against adverse effects to the public

health, the land, vegetation, and wildlife; and give priority to single-family residences and

appurtenant structures in authorizing alternations to the natural condition of the shoreline.

Permitted shoreline uses must be designed to “minimize, insofar as practical, any resultant

damage to the ecology and environment of the shoreline area and any interference with the

public’s use of the water.” RCW 90.58.020.

Shoreline Management Act Regulations

The Department of Ecology shoreline regulations are located in Chapters 173-26 and 173-27 of

the Washington Administrative Code (WAC). Chapter 173-26 WAC sets forth procedures and

guidelines for local adoption of shoreline master programs that are not applicable to the

Applicant’s permit request. Chapter 173-27 WAC sets forth permitting procedures and permit

criteria. The Hearing Examiner reviews the application under the following criteria:

(1) A substantial development permit shall be granted only when the development

proposed is consistent with:

(a) The policies and procedures of the act;

(b) The provisions of this regulation; and

(c) The applicable master program adopted or approved for the area.

Provided, that where no master program has been approved for an

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area, the development shall be reviewed for consistency with the

provisions of chapter 173-26 WAC, and to the extent feasible, any

draft or approved master program which can be reasonably ascertained

as representing the policy of the local government.

(2) Local government may attach conditions to the approval of permits as

necessary to assure consistency of the project with the act and the local master

program.

WAC 173-27-150.

Thus, the Hearing Examiner must review the application in light of the goals and policies found

in Title 22 KCC.

Kitsap County Comprehensive Plan Goals and Policies

Comprehensive Plan goals and policies protect sensitive shorelines from the negative impacts of

development, including risks to ecology, property, and human health. Comprehensive Plan,

Shorelines Element, Section 9.4, page 9-3 (August 2012). Comprehensive Plan goals and

policies address conservation and resource protection, shoreline use, water quality, economic

development, public access, recreation, history and culture, aesthetics, natural systems, and

transportation. Comprehensive Plan, Shorelines Element, Section 9.4, pages 9-3 to 9-8 (August

2012).

The criteria for review adopted by the Kitsap County Board of Commissioners are designed to

implement the requirement of Chapter 36.70B RCW to enact the Growth Management Act. In

particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to

ensure consistency with County development regulations, considering the type of land use, the

level of development, infrastructure, and the characteristics of development. RCW 36.70B.040.

Conclusions Based on Findings

1. With conditions, the proposed project would be consistent with the Kitsap County

Shoreline Management Master Program (SMP) and other applicable County

policies and regulations, including those requiring no net loss of ecological function

from the project and preferring joint-use facilities. The County gave reasonable

notice of the application and opportunity to comment. The fair market value of the

proposed project makes it a substantial development under the County SMP,

necessitating an SSDP. The County SMP permits piers and docks in the Residential

shoreline environment with an SSDP. The Applicant seeks to build a PRF, a use that is

consistent with the purposes of the Residential shoreline environment with an SSDP.

The proposed PRF would use the minimum number of pilings and is designed to meet

current standards for light penetration. The Applicant would install the proposed PRF

over a barren portion of Liberty Bay, and installation would not disturb any eelgrass

colonies. The Applicant would mitigate any project impacts in two ways. First, the

Applicant would remove an existing PRF, constructed with creosote pilings and wooden

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decking, that is at the end of its useful life. Second, the Applicant would remove invasive

species from the upland slope of the project site and replant the disturbed areas with

native species. The Applicant would install a cable-supported tram, reducing impacts

from transit to and from the beach. The County determined that, with mitigation

measures and conditions, the proposed project would not have a probable significant,

adverse environmental impact, and the determination was not appealed. The National

Marine Fisheries Service and the U.S. Fish and Wildlife Service both determined that,

with conditions, the proposed project would either not affect, or not likely adversely

affect, ESA listed species and critical habitat. The Applicant has proposed a PRF of the

minimum length necessary to support the proposed use, moorage of the Applicant’s

sailboat. The Applicant signed a joint-use agreement with the owners of the neighboring

parcel. The PRF height would allow public beach use beneath it, and the proposed

project’s design and location would not interfere with the public’s use of the bay.

Conditions are necessary to mitigate specific project impacts and ensure compliance with

federal, state, and local statutes, ordinances, and regulations. These conditions generally

require the Applicant to comply with relevant County, state, or federal ordinances,

statutes, or regulations; limit disturbance of the bank and bank vegetation; restore

disturbed areas to minimize erosion; commence PRF construction within 2 years of SSDP

approval and finish within 5 years; comply with the setback provisions of the KCC when

installing the tram; comply with approved work windows; report any sighting of forage

fish spawning; contain and remove any debris generated by installation; minimize visual

impacts of the proposed project and its installation; apply best management practices to

construction of the PRF; and remove the invasive species before obtaining an occupancy

permit. Findings 1-23.

2. With conditions, the proposed project would be consistent with state Shoreline

Management Act policies, guidelines, and rules. The scope and cost of the proposed

project require an SSDP under the SMA. The SSDP request is evaluated individually for

its compliance with the County SMP, based on facts in the record, and for consistency

with SMA policies, purposes, and regulations. As discussed above, the County SMP

permits piers and docks in the Residential shoreline environment with a SSDP. With

conditions and mitigation measures, the project would not adversely affect the shoreline

ecology or environment. The proposed PRF does not impede public use of the shoreline

or the waters of the bay. As described above, conditions are necessary to mitigate

specific project impacts and ensure compliance with federal, state, and local statutes,

ordinances, and regulations. Findings 1-23.

DECISION Based on the preceding findings and conclusions, the request for a shoreline substantial

development permit to build a shared-use tram, pier, ramp, and float, at 15734 and 15748

Virginia Point Road NE in Poulsbo, Washington, is APPROVED. Conditions are necessary to

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mitigate specific impacts of the proposed development and to ensure compliance with existing

County ordinances:

GENERAL

1. Alteration or disturbance of the bank and bank vegetation must be limited to that

necessary to perform the in-water work.

2. All disturbed areas must be restored and protected from erosion using vegetation or other

means.

3. If, at any time, water quality problems develop as a result of in-water work, immediate

notification must be made to any appropriate state or federal agency, e.g., Ecology,

WDFW, National Marine Fisheries Service, U.S. Fish and Wildlife Service, etc.

Affected tribes shall also be notified.

4. Upon final SSDP issuance, all construction within the shoreline jurisdiction must

commence within two years and be complete within five years. A one-time one year

extension is available but only if requested on or before ninety days of original permit

expiration. No exceptions are allowed unless provided for by law.

5. The project shall comply with all state and federal requirements, where applicable.

6. Permit approval subject to conditions in the Hearing’s Examiner Decision.

PLANNING/ZONING

7. All required permits shall be obtained prior to commencement of land clearing,

construction and/or occupancy.

8. The uses of the subject property are limited to the uses proposed by the Applicant and

any other uses will be subject to further review pursuant to the requirements of the Kitsap

County Code (KCC). Unless in conflict with the conditions stated and/or any

regulations, all terms and specifications of the application shall be binding conditions of

approval. Approval of this project shall not, and is not, to be construed as approval for

more extensive or other use of the subject properties.

9. The decision set forth herein is based upon representations made and exhibits contained

in the project application for the Shoreline Substantial Development Permit (SSDP) 15

02338. Any changes or deviations from such plans, proposals, or conditions of approval

imposed shall be subject to further review and approval of the County and potentially the

Hearing Examiner.

10. The authorization granted herein is subject to all applicable federal, state, and local laws,

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regulations, and ordinances. Compliance with such laws, regulations, and ordinances is a

condition precedent to the approvals granted and is a continuing requirement of such

approvals. By accepting this/these approvals, the Applicant represents that the

development and activities allowed will comply with such laws, regulations, and

ordinances. If, during the term of the approval granted, the development and activities

permitted do not comply with such laws, regulations, or ordinances, the Applicant agrees

to promptly bring such development or activities into compliance.

11. Any violation of the conditions of approval shall be grounds to initiate revocation of this

Shoreline Substantial Development Permit.

12. The proposed tram structure on tax parcel 352601-1-077-2000 shall comply with the

required 5-foot side yard setbacks from both the north and south property lines.

ENVIRONMENTAL

13. Timing of the in-water work shall be as specified in the JARPA, Biological Evaluation,

HPA, Corps of Engineers or other authorized regulatory agencies.

14. Where forage fish spawning is documented or reported, additional testing may be

requested of WDFW to vary work windows. Site inspection, notification and scheduling

shall be per WDFW procedures.

15. Work on projects shall be accomplished per the submitted and approved drawings and

specifications.

16. All man made debris involved in the construction process shall be removed from the site

and disposed in approved upland site.

17. All required in-water construction shall be conducted within the permitted work window.

18. Over-water construction may need to be completed after the in-water work window due

to the very limited time frame of the in-water work window. This work may include

installation of the floating structures. Over-water work shall be conducted under the

following procedures:

a. All materials shall be moved by hand equipment or small barges that shall bring

materials to the site but shall not be allowed to ground or in any way be

detrimental to the site.

b. The floating structures shall be constructed at an upland off-site location and

installed as modular units.

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c. All over-water remaining construction completed with hand tools and small

relatively quiet power tools, i.e., skill saw, ½" electric drill, etc.

d. Typical construction times to complete a dock will be 7 to 14 days.

19. All possible precautionary measure will be taken to contain material, material wastes or

any other foreign material on project site.

20. Over-water structures and/or equipment, and any items stored upon such structures such

as materials, garbage, tools, or apparatus, shall be designed and maintained to minimize

visual impacts. The maximum height for items stored upon such structures shall be

limited to three feet, as measured from the surface of the float or the dock, unless

shoreline conditions serve to minimize visual impacts (for example: high bank

environments, shorelines without residential development), but in no case shall the height

exceed six feet. Height limitations do not apply to materials and apparatus removed from

the site on a daily basis. Materials that are not necessary for the immediate and regular

operation of the facility shall not be stored waterward of the OHWM.

21 Lastly, the “Best Management Practices for Marinas” produced by the U.S.

Environmental Protection Agency (U.S. EPA, 2012) as well as the “Marina Best

Management Practice (BMPs)” by Clean Marina Washington (Clean Marina Washington,

2015) are required for in-water work and operation of the proposed floating structures.

22. The Applicant shall remove the 4,600 square feet of invasive blackberries and ivy

required as a mitigation measure in the MDNS dated September 29, 2015, from the

slopes of the two parcels comprising the project site prior to the issuance of any

occupancy permit.

DECIDED this 22nd

day of March 2016.